At last, on May 28, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) released new guidance addressing COVID-19 vaccine issues in the workplace. The guidance answers several important questions, including mandating vaccinations for employees and incentives that can potentially be offered.

As noted in an earlier GroupOne Background Screening blog, for several months U.S., employers from across the nation have requested legal assistance. The uncertainty about vaccine incentives has many employers concerned over liability issues, making them hesitant to decide on the proper course of action when inspiring employees to roll up their sleeves and take the shot.

Can vaccinations be mandatory?
New guidance confirms that an employer may require employees physically entering the workplace to be vaccinated for COVID-19. Employers must still adhere to reasonable accommodation obligations under the Americans with Disabilities Act of 1990 for employees seeking exemptions from vaccination. The EEOC also advises employers to be cognizant of certain groups of employees facing more difficulties to obtain vaccinations than others. Employers should also make sure the vaccine program does not inadvertently affect any protected groups.

Employers mandating vaccines should provide reasonable accommodations to employees, effectively exempting them from company policy because of disability or religious beliefs, unless doing so poses undue hardship on the operation of business or create a threat to the health of others. Reasonable accommodations could include requiring unvaccinated employees to wear face coverings and observe social distancing. Obtaining periodic tests for COVID-19 could also be applied.

Some employers have provided incentives to employees to obtain vaccines. This has led to uncertainties regarding the types of incentives and what proof employers should require. At long last, the EEOC’s new guidance clarifies employers administering vaccines directly to employees may offer incentives as long as they are not coercive or intimidating. There was a concern that large incentives could make employees feel pressured to disclose protected medical information.

Employers providing incentives to see proof of vaccination by a third party, but who do not administer vaccines themselves, may provide larger incentives because they are not receiving disability-related information. Employers offering incentives may require employees to provide proof of vaccination, either with documentation or certifying they have been vaccinated.

Please note, employers must keep vaccination information confidential, including ensuring vaccination information is kept separate from employees’ general personnel files.

Employers should understand the EEOC’s guidance only covers federal Equal Employment Opportunity laws. Some state and local laws may place greater restrictions on an employer’s ability to mandate vaccinations or provide vaccine incentives.

The information and opinions expressed are for educational purposes only and are based on current practice, industry related knowledge and business expertise. The information provided shall not be construed as legal advice, express or implied.